PREFERRED STOCK PURCHASE AGREEMENT
This PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
this 11th5th day of OctoberJuly, 2002 between American Millennium Corporation,
Inc., a New Mexico corporation (the "Company"), and LISEN, LLC (the
"Purchaser").
RECITALS
WHEREAS, the Company desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Company, shares of the Company's Series A
Non-Voting Convertible Preferred Stock, par value $0.001 (the "Preferred Stock")
convertible into the Company's Common Stock, par value $0.001 (the "Common
Stock"), on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
AGREEMENT TO PURCHASE AND SELL PREFERRED STOCK
1.1 AGREEMENT TO PURCHASE AND SELL PREFERRED STOCK. Upon the terms and
subject to the conditions of this Agreement, the Company hereby agrees to sell
to the Purchaser at the Closing (as defined below), and the Purchaser agrees to
purchase from the Company at the Closing, Two Million Five Hundred Thousand
Dollars ($2,500,000_______) aggregate purchase price of Preferred Stock, par
value $0.001, of the Company having the terms and conditions set forth in the
Statement of Determination of Preferences of Series A Non-Voting Convertible
Preferred Stock of American Millennium Corporation, Inc. (the "Certificate")
substantially in the form attached hereto (the "Shares") at a price per share
(the "Per Share Purchase Price") set forth in Section 1.2 below.
1.2 PER SHARE PURCHASE AND CONVERSION PRICES. The Per Share Purchase Price
shall be Two Dollars and Fifty Cents ($2.50). The "Conversion Price" for each
share of Preferred Stock into Common Stock shall be the amount that is thirty
per cent (30%) less than the average of the closing sales or bid price, as the
case may be, of the Companys Common Stock, as reported by the National Quotation
Bureau, Inc., or the OTC Bulletin Board, or the Nasdaq National Market or other
stock exchange or trading system on which the Common Stock primarily trades for
the twenty (20) consecutive trading days immediately prior to the date of the
conversion, not to be less than Fifty Cents ($0.50) per share of the Companys
Common Stock.
1.3 REGISTRATION. The Company will use its best efforts to cause the
Subject Stock (as defined in the Registration Rights Agreement) to be admitted
for quotation on the Nasdaq National Market or other stock exchange or trading
system on which the Common Stock primarily trades on or prior to the effective
date of any registration statement hereunder.
1.4 REPURCHASE. The Company shall have the right at any time to purchase
the Preferred Stock sold under this Agreement for the purchase price plus any
accrued dividends.
SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The Closing of the purchase and sale of the Shares
hereunder (the "Closing") shall be held at the offices of Xxxx X. Xxxxxxx , at
11:00 a.m. (Central Standard time), October 11July 5, 2002, or at such other
time and place as the Company and the Purchaser mutually agree (the date of the
Closing being hereinafter referred to as the "Closing Date").
2.2 DELIVERY OF SHARES. At the Closing, the Company will deliver to the
Purchaser a certificate or certificates representing the Shares against payment
of the aggregate purchase price of Two Million Five Hundred Thousand Dollars
($2,500,000) by wire transfer of immediately available funds to an
account designated by the Company. The certificate or certificates representing
the Shares and the shares of Common Stock issuable upon conversion of the Shares
shall be subject to a legend restricting transfer under the Securities Act of
1933, as amended (the "Securities Act"), and referring to restrictions on
transfer herein, such legend to be substantially as follows:
"The shares represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933,
as amended. Such shares may not be sold or transferred in the absence of
such registration or an opinion of counsel reasonably satisfactory to the
Company as to the availability of an exemption from registration.
The shares represented by this certificate are subject to restrictions on
transfer, including any sale, pledge or other hypothecation, set forth in
an agreement dated as of October 11July 5, 2002 between the Company and
LISEN, LLC, a copy of which agreement may be obtained at no cost by written
request made by the holder of record of this certificate to the secretary
of the Company at the Company's principal executive offices."
The Company agrees (i) to remove the legend set forth in the second
preceding paragraph upon receipt of an opinion of counsel in form and substance
reasonably satisfactory to the Company that the Shares or the shares of Common
Stock issuable upon conversion of the Shares are eligible for transfer without
registration under the Securities Act and (ii) to remove the legend set forth in
the immediately preceding paragraph at such time as the Shares (or the shares of
Common Stock issuable upon conversion of the Shares) may be transferred in
compliance with Section 8 or upon the termination of the covenants of Section 8
as provided for in Section 9.4.
2.3 DELIVERY OF NSI GLOBAL INC STOCK. In addition, Company shall deliver at
the Closing a certificate representing One Million Six Hundred and Eighty
Thousand (1,680,000) shares of NSI Global Inc stock. The Company shall deliver
documentation that will provide assignment of the right to thirty percent (30%)
of the Companys rights in options to acquire additional shares of NSI Global Inc
stock pursuant to the NSI Global Inc/Company Share Agreement.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
3.1 ORGANIZATION. The Company is a corporation duly organized and validly
existing under the laws of the State of New Mexico and is in good standing under
such laws. The Company has the requisite corporate power to own and operate its
properties and assets and to carry on its business as presently conducted and as
proposed to be conducted. The Company is qualified to do business as a foreign
corporation in each jurisdiction in which the ownership of its property or the
nature of its business requires such qualification, except where the failure to
be so qualified would not have a materially adverse effect on the Company and
its subsidiaries, taken as a whole.
3.2 AUTHORIZATION. All corporate action on the part of the Company
necessary for the authorization, execution, delivery and performance of this
Agreement, the Registration Rights Agreement (attached hereto), the
authorization, sale, issuance and delivery of the Shares hereunder, and the
performance of the Company's obligations hereunder and under said Agreements has
been taken. This Agreement and the Registration Rights Agreement constitute
legal, valid and binding obligations of the Company enforceable in accordance
with their respective terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies, and to
limitations of public policy as they may apply to Section 4 of the Registration
Rights Agreement. Upon their issuance and delivery pursuant to this Agreement,
the Shares will be validly issued, fully paid and nonassessable. The issuance
and sale of the Shares will not give rise to any preemptive rights or rights of
first refusal on behalf of any person in existence on the date hereof.
3.3 NO CONFLICT. The execution and delivery of this Agreement and the
Registration Rights Agreement do not, and the consummation of the transactions
contemplated hereby and thereby will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both), or
give rise to a right of termination, cancellation or acceleration of any
obligation or to a loss of a material benefit under, any provision of the
Articles of Incorporation or By-laws of the Company or any mortgage, indenture,
lease or other agreement or instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to the Company, its properties or assets, the effect of which could have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
or materially impair or restrict the Company's power to perform its obligations
as contemplated under said Agreements.
3.4 SEC DOCUMENTS. The Company has filed all required reports, schedules,
forms, statements and other documents with the Securities and Exchange
Commission (the "SEC") since December 31, 2001 (the "SEC Documents"). As of
their respective dates, the SEC Documents complied in all material respects with
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as the case may be and the rules and regulations
of the SEC promulgated thereunder applicable to such SEC Documents. The
financial statements of the Company included in the SEC Documents comply as to
form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with U.S. generally accepted accounting principles
("GAAP") (except, in the case of unaudited statements as permitted by Form 10Q
of the SEC) applied on a consistent basis during the periods involved (except as
may be indicted in the notes thereto) and fairly present the financial position
of the Company as of the dates thereof and the results of its operation and cash
flows for the period then ending in accordance with GAAP (subject, in the case
of the unaudited statements, to normal year end audit adjustments).
3.5 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in the SEC
Documents since the date of the most recent audited financial statements
included in the SEC Documents, there has not been (i) any declaration, setting
aside or payment of any dividend or distribution (whether in cash, stock or
property) with respect to any of the Company's capital stock, (ii) any split,
combination or reclassification of any of its capital stock or any issuance or
the authorization of any issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock, (iii) any damage,
destruction or loss of property, whether or not covered by insurance, that has
or could reasonably be expected to have a material adverse effect on the Company
and its subsidiaries taken as a whole, or (iv) any change in accounting methods,
principles or practices by the Company materially affecting its assets,
liabilities, or business, except insofar as may have been required by a change
in GAAP.
3.6 GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part
of the Company is required in connection with the valid execution and delivery
of this Agreement, or the offer, sale or issuance of the Shares, or the
consummation of any other transaction contemplated hereby, except such filings
as may be required to be made with the SEC.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as follows:
4.1 ORGANIZATION. The Company is a corporation duly organized and validly
existing under the laws of the State of Missouri and is in good standing under
such laws. The Company has the requisite corporate power to own and operate its
properties and assets and to carry on its business as presently conducted and as
proposed to be conducted. The Company is qualified to do business as a foreign
corporation in each jurisdiction in which the ownership of its property or the
nature of its business requires such qualification, except where the failure to
be so qualified would not have a materially adverse effect on the Company and
its subsidiaries, taken as a whole.
4.2 AUTHORITY. All corporate action on the part of the Company necessary
for the authorization, execution, delivery and performance of this Agreement,
the Registration Rights Agreement (attached hereto), the authorization, sale,
issuance and delivery of the Shares hereunder, and the performance of the
Company's obligations hereunder and under said Agreements has been taken. This
Agreement and the Registration Rights Agreement constitute legal, valid and
binding obligations of the Company enforceable in accordance with their
respective terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies, and to limitations
of public policy as they may apply to Section 4 of the Registration Rights
Agreement. Upon their issuance and delivery pursuant to this Agreement, the
Shares will be validly issued, fully paid and nonassessable. The issuance and
sale of the Shares will not give rise to any preemptive rights or rights of
first refusal on behalf of any person in existence on the date hereof.
4.3 NO CONFLICT. The execution and delivery of this Agreement and the
Registration Rights Agreement do not, and the consummation of the transactions
contemplated hereby and thereby will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both), or
give rise to a right of termination, cancellation or acceleration of any
obligation or to a loss of a material benefit under, any provision of the
Articles of Incorporation or By-laws of the Company or any mortgage, indenture,
lease or other agreement or instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to the Company, its properties or assets, the effect of which could have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
or materially impair or restrict the Company's power to perform its obligations
as contemplated under said Agreements.
4.4 INVESTMENT. The Purchaser is acquiring the Shares for investment for
its own account, not as a nominee or agent, and not with a view to, or for
resale in connection with, any distribution thereof. The Purchaser understands
that the Shares have not been registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Purchaser's representations and warranties contained
herein.
4.5 DISCLOSURE OF INFORMATION. The Purchaser has had full access to all
information it considers necessary or appropriate to make an informed investment
decision with respect to the Shares to be purchased by the Purchaser under this
Agreement. The Purchaser further has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Shares and to obtain additional information necessary to verify
any information furnished to the Purchaser or to which the Purchaser had access.
4.6 INVESTMENT EXPERIENCE. The Purchaser understands that the purchase of
the Shares involves substantial risk. The Purchaser has experience as an
investor in securities of companies and acknowledges that it is able to fend for
himself, can bear the economic risk of its investment in the Shares and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of this investment in the Shares and protecting
its own interests in connection with this investment.
4.7 ACCREDITED INVESTOR STATUS. The Purchaser is an "accredited investor"
within the meaning of Regulation D promulgated under the Securities Act.
4.8 RESTRICTED SECURITIES. The Purchaser understands that the Shares to be
purchased by the Purchaser hereunder are characterized as "restricted
securities" under the Securities Act inasmuch as they are being acquired from
the Company in a transaction not involving a public offering and that under the
Securities Act and applicable regulations thereunder such securities may be
resold without registration under the Securities Act only in certain limited
circumstances. The Purchaser is familiar with Rule 144 of the SEC, as presently
in effect, and understands the resale limitations imposed thereby and by the
Securities Act. The Purchaser understands that the Company is under no
obligation to register any of the Shares sold hereunder except as provided in
the Registration Rights Agreement.
SECTION 5
CONDITIONS TO OBLIGATION OF THE PURCHASER
The Purchaser's obligation to purchase the Shares at the Closing is, at the
option of the Purchaser, which may waive any such conditions, subject to the
fulfillment on or prior to the Closing Date of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Company contained in Section 3 will be true and correct on and
as of the date hereof and on and as of the Closing Date with the same effect as
though such representations and warranties had been made as of the Closing Date.
5.2 COVENANTS. All covenants, agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing Date shall
have been performed or complied with in all material respects.
5.3 NO ORDER PENDING. There shall not then be in effect any order enjoining
or restraining the transactions contemplated by this Agreement.
5.4 NO LAW PROHIBITING OR RESTRICTING SALE OF THE SHARES. There shall not
be in effect any law, rule or regulation prohibiting or restricting the sale of
the Shares, or requiring any consent or approval of any Person which shall not
have been obtained to issue the Shares with full benefits afforded the Preferred
Stock or the Common Stock into which the Preferred Stock is convertible (except
as otherwise provided in this Agreement).
5.5 REGISTRATION RIGHTS AGREEMENT. The Company shall have executed and
delivered the Registration Rights Agreement substantially in the form attached
hereto.
SECTION 6
CONDITIONS TO OBLIGATION OF THE COMPANY
The Company's obligation to sell and issue the Shares at the Closing is, at
the option of the Company, which may waive any such conditions, subject to the
fulfillment on or prior to the Closing Date of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Purchaser contained in Section 4 will be true and correct on and as of the
date hereof and on and as of the Closing Date with the same effect as though
such representations and warranties had been made as of the Closing Date.
6.2 COVENANTS. All covenants, agreements and conditions contained in this
Agreement to be performed by the Purchaser on or prior to the Closing Date shall
have been performed or complied with in all material respects.
6.3 NO ORDER PENDING. There shall not then be in effect any order enjoining
or restraining the transactions contemplated by this Agreement.
6.4 NO LAW PROHIBITING OR RESTRICTING THE SALE OF THE SHARES. There shall
not be in effect any law, rule or regulation prohibiting or restricting the sale
of the Shares, or requiring any consent or approval of any person which shall
not have been obtained to issue the Shares with full benefits afforded the
Preferred Stock or the Common Stock into which the Preferred Stock is
convertible (except as otherwise provided in this Agreement).
6.5 THE PURCHASER. The Purchaser shall have executed and delivered the
Registration Rights Agreement substantially in the form attached hereto as
Exhibit A.
SECTION 7
COVENANTS OF THE COMPANY
7.1 REGISTRATION RIGHTS. The Company will comply with the provisions
regarding registration rights contained in the Registration Rights Agreement
attached hereto as Exhibit A.
7.2 PROFIT PARTICIPATION. The Purchasers shall be entitled to participation
in the profits derived from the License by the Company in an amount of
twenty-five percent (25%), said profit participation to last until the License
expires or is terminated. Purchase by the Corporation of the Series A Preferred
Stock shall not terminate said profit participation by the holders. The Company
will generate a financial mechanism to account for the profits derived from the
License and provide it to the Purchasers.
7.3 RIGHT OF FIRST PAYMENT. Should the Company sell, or be forced to sell,
the Vistar Regional Operator license for South America (the License), or the
business established to implement that License, Company shall redeem the
Preferred Stock at the Original Issue Price unless otherwise dictated by law or
regulation.
SECTION 8
COVENANTS OF THE PURCHASER
8.1 RIGHT OF FIRST REFUSAL. Prior to making any sale or transfer of the
Shares (other than a sale or transfer registered under the Securities Act or
pursuant to Rule 144, or a sale or transfer of that number of Shares
representing less than three percent (3%) of the Company's outstanding Common
Stock, as converted, to any person or group), the Purchaser shall give the
Company the opportunity to purchase such Shares in the following manner:
(i) The Purchaser shall give notice (the "Transfer Notice") to the Company
in writing of such intention specifying the approximate number of the
proposed purchasers or transferees, the amount of Shares proposed to be
sold or transferred, the proposed price per share therefor (the "Transfer
Price") and the other material terms upon which such disposition is
proposed to be made.
(ii) The Company shall have the right, exercisable by written notice given
by the Company to the Purchaser within five (5) business days after receipt
of such Transfer Notice, to purchase all but not part of the Shares
specified in such Transfer Notice for cash per share equal to the Transfer
Price, provided, within five (5) business days after written notice of
exercise by the Company, the Company shall provide the Purchaser with
evidence satisfactory to the Purchaser (by written commitment letter
subject only to customary representations, diligence and documentation,
letter of credit or otherwise) of its ability to finance such repurchase.
(iii) If the Company exercises its right of first refusal hereunder, the
closing of the purchase of the Shares with respect to which such right has
been exercised shall take place within ten (10) business days after the
Company gives notice of such exercise. Upon exercise of its right of first
refusal, the Company and the Purchaser shall be legally obligated to
consummate the purchase contemplated thereby and shall use their best
efforts to secure any approvals required in connection therewith.
(iv) If the Company does not exercise its right of first refusal hereunder
within the time specified for such exercise, the Purchaser shall be free,
during the period of ninety (90) calendar days following the expiration of
such time for exercise, to sell the Shares specified in such Transfer
Notice on terms no less favorable to the Purchaser than the terms specified
in such Transfer Notice.
8.2 ACTS IN CONCERT WITH OTHERS. Except as contemplated herein with regard
to permissible sales of the Purchaser's Shares, the Purchaser shall not join a
partnership, limited partnership, syndicate or other group, or otherwise act in
concert with any Person, for the purpose of acquiring, holding or disposing of
Shares of the Company owned by the Purchaser.
8.3 RESTRICTIONS ON TRANSFER OF SHARES. For a period of one year from the
date of this Agreement, the Purchaser shall not, directly or indirectly, sell,
transfer, pledge or hypothecate any Shares (or shares of Common Stock received
upon the conversion of the Shares) owned by it except (i) to the Company or any
person or group approved in writing by the Company, or (ii) to a corporation of
which the Purchaser owns not less than 50% of the voting power entitled to be
cast in the election of directors (a "Controlled Corporation"), so long as such
Controlled Corporation agrees to hold such Shares subject to all the provisions
of this Agreement, including this Section 8.6, and agrees to transfer such
Shares to the Purchaser or another Controlled Corporation of the Purchaser if it
ceases to be a Controlled Corporation of the Purchaser. Notwithstanding the
foregoing or anything else to the contrary in this Agreement, the Purchaser may
enter into bona fide transactions through a nationally recognized investment
banking firm which constitute a hedge against changes in the market price of the
Common Stock, provided, however, no public disclosure is made with respect to
such hedge transactions, except in an initial Schedule 13D, the text of which is
reasonably satisfactory to the Company, or if in the opinion of counsel to
Purchaser such disclosure is required as a matter of law.
8.4 ACQUISITION OF STOCK. The Purchaser shall advise management of the
Company as to the Purchaser's general plans to acquire shares of Common Stock,
or rights thereto, reasonably in advance of any such acquisitions. All of the
Purchaser's purchases of Common Stock shall be in compliance with applicable
laws and regulations and the provisions of this Agreement.
SECTION 9
MISCELLANEOUS
9.1 CERTAIN DEFINITIONS. As used in this Agreement:
(a) The term "Voting Stock" means the Common Stock and any other securities
issued by the Company having the ordinary power to vote in the election of
directors of the Company (other than securities having such power only upon
the happening of a contingency).
(b) The terms "Beneficial Owner," "beneficial Ownership" and "group" shall
have the meaning comprehended by Section 13(d)(3) of the Exchange Act and
the rules and regulations promulgated thereunder.
(c) The term "Person" shall mean any person, individual, corporation,
partnership, trust or other non-governmental entity or any governmental
agency, court, authority or other body (whether foreign, federal, state,
local or otherwise).
(d) The term "Change of Control" shall mean (i) an acquisition of Voting
Stock by a Person or group in a purchase or transaction or series of
related purchases or transactions if immediately thereafter such Person or
group has Beneficial Ownership of more than fifty percent (50%) of the
combined voting power of the Company's then outstanding Voting Stock; (ii)
the execution of an agreement providing for a tender offer, merger,
consolidation or reorganization, or series of such related transactions
involving the Company, unless the stockholders of the Company, immediately
after such transaction or transactions are the Beneficial Owners of at
least fifty percent (50%) of the Voting Stock; (iii) a change or changes in
the membership of the Company's Board of Directors which represent a change
of a majority or more of such membership during any twelve month period
(unless such change or changes in membership are caused by the actions of
the then existing Board of Directors and do not occur within twelve months
of the commencement, threat or proposal of an Election Contest, tender
offer or other transaction which would constitute a Change of Control under
(i) or (ii) of this Section 9.1(d)); or (iv) a sale of all or substantially
all of the Company's assets.
(e) The term "Insolvency Proceeding" shall mean (i) an assignment for the
benefit of creditors, (ii) the filing by or against Company of a petition
to have Company adjudged insolvent, bankrupt or seeking a reorganization or
liquidation under any law relating to bankruptcy, insolvency or
receivership, (iii) an appointment of a receiver or trustee for all or
substantially all of the assets of the Company, (iv) a public admission in
writing of the Company's inability to pay its debts as they come due, or
(v) the adoption of a plan of liquidation or dissolution by the Board of
Directors of the Company.
(f) The term "Significant Event" means (i) any proposed amendment to the
Articles of Incorporation or By-laws of the Company (other than a proposal
to increase the number of authorized shares of Common Stock or Preferred
Stock; provided such increase(s) is (are) not contrary to clause (v) of
this Section 9.1 (f)), (ii) a disposition of the Company (by way of merger,
disposition of assets or otherwise), (iii) a recapitalization of the
Company, (iv) a liquidation of the Company, or (v) any vote pursuant to any
provision of law or the Company's Articles of Incorporation or By-laws
requiring or permitting shareholders to approve any business combination
proposed by or with another Person or its affiliates which have acquired a
certain percentage of the Company's shares or to grant voting rights to
such Person or to waive or adopt provisions requiring such a vote.
9.2 BEST EFFORTS. Each of the Company and the Purchaser shall use its best
efforts to take all actions required under any law, rule or regulation adopted
subsequent to the date hereto to ensure that the conditions to the Closing set
forth herein are satisfied on or before the Closing Date.
9.3 GOVERNING LAW. This Agreement shall be governed in all respects by the
internal laws of the State of California as applied to contracts entered into
solely between residents of, and to be performed entirely within, such state,
and without reference to principles of conflicts of laws or choice of laws.
9.4 SURVIVAL; TERMINATION OF COVENANTS. The representations and warranties
in Sections 3 and 4 of this Agreement shall not survive the Closing except for
the representations and warranties in Sections 4.3 and 4.7 hereof, which shall
continue to survive. The covenants of the Company and the Purchaser under
Section 7 and Section 8 hereof shall terminate on the fifth anniversary of this
Agreement, provided the Purchaser's covenants in Section 8 shall terminate in
the event of a Change of Control or Insolvency Proceeding.
9.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
9.6 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Certificate and the
Registration Rights Agreement constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof and supersede all prior agreements and understandings among the parties
relating to the subject matter hereof. Neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought. The enforceability and validity of
this Agreement and the Registration Rights Agreement are each to be determined
separately and any finding that such Registration Rights Agreement is invalid or
unenforceable shall have no effect on the validity or enforceability of this
Agreement.
9.7 NOTICES. All notices, requests, demands or other communications which
are required or may be given pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given: (i) on the date of delivery
if delivered by hand, (ii) upon the third day after such notice is (a) deposited
in the United States mail, if mailed by registered or certified mail, postage
prepaid, return receipt requested, or (b) sent by a nationally recognized
overnight express courier, or (iii) by facsimile upon written confirmation
(other than the automatic confirmation that is received from the recipient's
facsimile machine) of receipt by the recipient of such notice:
To the Company: To the Purchaser:
0000 Xxxxx Xxxxxx LISEN, LLC
Suite 100 PO Box 1037
Golden, CO 80401 Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
9.8 BROKERS.
(a) The Company has not engaged, consented to or authorized any broker,
finder or intermediary to act on its behalf, directly or indirectly, as a
broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. The Company hereby agrees to indemnify and
hold harmless the Purchaser from and against all fees, commissions or other
payments owing to any party acting on behalf of the Company hereunder.
(b) The Purchaser has not engaged, consented to or authorized any broker,
finder or intermediary to act on its behalf, directly or indirectly, as a
broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. The Purchaser hereby agrees to indemnify
and hold harmless the Company from and against all fees, commissions or
other payments owing to any party acting on behalf of the Purchaser
hereunder.
9.9 FEES, COSTS AND EXPENSES. All fees, costs and expenses (including
attorneys' fees and expenses) incurred by either party hereto in connection with
the preparation, negotiation and execution of this Agreement and the
consummation of the transactions contemplated hereby and thereby, shall be the
sole and exclusive responsibility of such party.
9.10 SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restriction
of this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
9.11 INITIAL PUBLIC ANNOUNCEMENT. The Company and the Purchaser shall agree
on the form and content of the initial public announcement which shall be made
concerning this Agreement and the transactions contemplated hereby, and neither
the Company nor the Purchaser shall make such public announcement without the
consent of the other, except as required by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date set forth above.
AMERICAN MILLENNIUM CORPORATION, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
LISEN, LLC
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx
PROPRIETARY
